A U.S. appeals court has ruled that special counsel Jack Smith’s investigation cannot recover cellphone texts and other communications between Rep. Scott Perry (R-Pa.) and other lawmakers and staff regarding the attempt to overturn the 2020 election on January 6, 2021. The court also stated that a federal judge must review around 2,000 documents individually to determine whether any fall outside lawmakers’ constitutional immunity from criminal investigation.
The U.S. Court of Appeals for the District of Columbia Circuit released a 29-page opinion on Wednesday, explaining the reasoning behind its decision to reverse a lower-court ruling by U.S. District Judge Beryl A. Howell, which was sealed on September 5. The Department of Justice has the option to appeal the opinion.
This ruling prolongs the ongoing dispute over the search of Rep. Perry’s phone data, which has been delayed for over a year. It also establishes new legal boundaries surrounding the Constitution’s “Speech or Debate Clause,” specifically addressing what topics of cellphone communications may be considered official “legislative” business and thus protected from investigators.
Rep. Scott Perry played a significant role in attempting to replace the attorney general after the 2020 election and to reverse the Justice Department’s findings that Joe Biden had won the election fairly. The House committee investigating the January 6, 2021, attack on the U.S. Capitol by Trump supporters highlighted his involvement.
In December, Judge Howell ordered the release of approximately 90% of the 2,209 documents found on Perry’s phone, citing a strong public interest. She believed that texts, emails, and attachments requested by the FBI were necessary for the historical investigation into election obstruction. Former President Donald Trump was indicted on federal charges last month related to his attempts to undermine Biden’s election victory.
However, Howell rejected Perry’s argument that all his communications should be considered “informal” fact-finding in his role as a member of Congress and thus protected from disclosure. The three-judge panel agreed with Howell’s decision to withhold some of Perry’s communications with other House members that related to core legislative actions. Yet, they asserted that discussions about alleged fraud in the 2020 presidential election should not be labeled as purely political and nonlegislative.
The panel ordered Judge Howell to review additional communications involving outside parties and executive branch officials. The standard for review is whether the subject discussed is an integral part of the legislative process.
The special counsel’s office declined to comment on the ruling. Perry’s attorney, John Rowley, said the decision was a “full-throated vindication” of Congress’s protection from intrusive inquiries into legislative deliberations. He emphasized that fact-finding by individual lawmakers does not need committee or house authorization to be protected from compelled disclosure.